Bombay High Court
Vasumati Jadgish Shah vs 1. Neelaben Sudhir Shah And Anr on 25 March, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-OS:4813 Digitally signed
SWAROOP by SWAROOP
SHARAD
SHARAD PHADKE
PHADKE Date: 2025.03.25
23:01:02 +0530
ts 81 of 2009.doc
fIN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.81 OF 2009
IN
TESTAMENTARY PETITION NO.371 OF 2009
1. Vasumati Jagdish Shah &
2. Parag Jagdish Shah
Both adults of Mumbai Indian
Inhabitant residing at Flat No.10,
Meera 18, L.D.Ruparel Marg,
Near Hanging Garden,
Mumbai - 400 006
3. Kanan Krishna Rao,
Aged 50 years,
Adult of Mumbai Indian Inhabitant,
residing at 501/A, Raheja Estate,
Kuluwadi Near Sanjay Gandhi
National Park, Borivali (E),
Mumbai - 400 066,
being the beneficiary and legal
heir of the deceased ... Plaintiffs
versus
1. Neelaben Sudhir Shah,
aged 68 years, Indian Inhabitant,
Mangalmilan, 2nd floor, Sharad
Caterjee Marg, Off. Ramakrishna
Mission Marg, Santacruz (West),
Mumbai - 400 054.
2. Satish Manilal Shah,
an adult of Bombay, Indian
Inhabitant, residing at B/5,
Prerna Mandir Co-op. H.P.
Petrol Pump, S.V.Road,
Santacruz (W),
Mumbai - 400054 ... Defendants
SSP 1/49
::: Uploaded on - 25/03/2025 ::: Downloaded on - 26/03/2025 22:00:08 :::
ts 81 of 2009.doc
Mr. Nirman Sharma i/by Mr. Mehul Shah, for Plaintiffs.
Ms. Manjiri Shah with Mr. Jesal Shah i/by Dani Shah and Co., for Defendants.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 26 SEPTEMBER 2024
PRONOUNCED ON : 25 MARCH 2025
JUDGMENT :
1. This is a suit for grant of Letters of Administration with the Will annexed
to the property and credits of Manilal Chhotalal Shah (Testator).
2. Initially, Jagdish Manilal Shah, the son of the Testator and husband of
Plaintiff No.1 and father of Plaintiff Nos.2 and 3, had filed a Petition for
Probate of the purported last Will and Testament of the Testator dated 5 July
2003. Jagdish, the deceased Petitioner, was named as the executor in the
said Will. Jagdish passed away on 16 September 2017.
3. Jagdish, had instituted the Petition for Probate in the capacity of the
executor and beneficiary under the purported last Will and Testament dated 5
July 2003 asserting, inter alia, that at the time of his death, the deceased had
a fixed place of abode at Flat No.10, Meera, L.D.Ruparel Marg, Napean
Road, Walkeshwar, Bombay - 400 006. Savita Manilal Shah, wife of the
deceased had predeceased the deceased on 23 March 1988. The deceased
left behind Jagdish - the Petitioner, Satish - Defendant No.2 and Jaydeep,
two other sons, and Neela Sudhir Shah - Defendant No.1, and Varsha
Chandrakant Gosaliya, married daughters.
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4. It was asserted that the deceased had executed the purported Will on 5
July 2003. Mr. Navin Kantilal Parekh and Mr. Bharat Chaganlal Raghani had
attested the said purported Will. Mr. Navin and Mr. Bharat had witnessed the
deceased executing the Will and at the request of the deceased, each of them
had set and subscribed their respective names and signatures in English at
the foot of the testamentary papers as witnesses thereto. The deceased had
left behind the property described in Schedule C appended to the Petition.
The original Petitioner had, thus, prayed for grant of Probate.
5. Neela Sudhir Shah - Defendant No.1 filed an affidavit in support of the
caveat and resisted the prayer of grant of Probate. Satish Manilal Shah -
Defendant No.2, also resisted the Petition for Probate by filing the caveat and
an affidavit in support of the caveat. By and large, the resistance to the grant
of Probate proceeds on identical lines.
6. Defendant Nos.1 and 2 have assailed the validity and genuineness of
the purported Will by taking a slew of exceptions. First and foremost, the
appointment of Jagdish Shah as the sole executor, was stated to be shrouded
with grave suspicion. Referring to the intrinsic evidence of the purported Will,
the Defendants contend that the names of Satish - Defendant No.2, and
Jaydeep, another son of the deceased, have been erased as the executors of
the Will after the execution of the purported Will by the Testator. At number of
places in the Will, the word "executors" has been mentioned which runs
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counter to Jagdish having been appointed as the sole executor under the Will.
7. Secondly, the Testator had not executed the Will of his own volition. The
Testator was not a free agent at the time of the execution of the alleged Will.
The Testator had become wholly dependent upon Jagdish and his family
members due to old age as well as ailments he was suffering from. Jagdish
and his family members exercised undue influence over the Testator.
8. Thirdly, number of statements in the Will are far from true facts. The
claim that the Testator had already provided a flat to Satish - Defendant No.2,
and as regards the constitution of the partnership firm M/s. Chhokeson
Printing Works, were demonstrably incorrect. The statement in the Will that
Satish - Defendant No.2 had retired from the partnership firm was also
contrary to the record. Jagdish, taking undue advantage of the situation of
the Testator, had alienated the Testator from other family members.
9. Fourthly, the Defendants further contended that Jagdish was the
principal beneficiary under the Will. There are serious and multifarious
suspicious circumstances, which indicate that the purported Will was
executed under the undue influence of Jagdish and his family members. Mr.
Navin Parekh is the childhood friend of Jagdish, the principal beneficiary,
under the Will. Bharat Raghani, the Solicitor, is also a friend of Jagdish. The
condition of the Testator was very feeble and debilitated. The Testator was
not in a sound and disposing state of mind on account of his advanced age.
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The Testator had no mental capacity to execute the Will. The Testator did not
fully understand the nature and effect of the disposition in the said Will. The
Testator did not understand the character of the instrument he was made to
put signature on. The signature of the Testator on the Will appears to be
shaky and it, thus, appeared that the Testator had not executed the Will with
full diligence.
10. Fifthly, the dispositions in the said Will are also unnatural, improbable
and unfair and have not been made out of free will of the Testator.
11. Sixthly, the purported Will was not disclosed by Jagdish in the presence
of all the family members of the deceased, nor was it disclosed to Satish -
Defendant No.2 till he gave notice through Advocate and only after the legal
notice was served, that the Petitioner disclosed the said Will and gave
inspection of the same. Though the Will was purportedly executed on 5 July
2003 yet it was registered on 28 July 2003, and the purported Will appeared
to have been tampered with during the intervening period. On these, amongst
other, grounds, the Defendants have prayed for the dismissal of the Petition.
12. In the wake of the aforesaid pleadings, the following issues were settled
and I have given my findings against each of them for the reasons to follow :
Issues Findings
(i) Whether the Plaintiff proves that the In the negative.
document dated 5 July 2003 and
numbered as Will No.151 of 2009 is the
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last Will and testament of Shri Manilal
Chhotalal Shah and whether it was duly
executed in accordance with law ?
(ii) Whether the Plaintiff proves that the In the affirmative to
Testator was of sound and disposing the extent of sound
state of mind, memory and understanding and disposing state
at the time when he executed the of mind.
writing, i.e. the Will numbered as
151 of 2009 ?
(iii) Whether the Defendants prove that the In the negative
Will in question was procured by the
Plaintiff exercising undue influence ?
(iv) Whether the Defendants prove that the In the negative
document said to be the Will of the
deceased does not bear the
signature and initials of the deceased ?
(v) Whether the Testamentary Petition is In the negative
barred by the Law of Limitation ?
(vi) What relief, and what order ? As per final order.
REASONS
13. In order to substantiate their claim, the Plaintiffs have examined
Navin Parekh (P.W.1), Bharat Raghani (P.W.2), the attesting witnesses.
Jagdish Shah (P.W.3), the executor and propounder, has also examined
himself. After the demise of Jagdish, Vasumati Shah (P.W.4) - Plaintiff No.1
has examined herself.
14. In the rebuttal, though Neela Shah - Defendant No.1, had filed an
affidavit in support of the caveat, Neela Shah did not enter the witness box.
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Satish Shah - Defendant No.2, has examined himself. Satish Shah -
Defendant No.2 is the sole witness who has been examined in defence.
15. At the conclusion of the trial, I have heard Mr. Nirman Sharma, learned
Counsel for the Plaintiffs, and Ms. Manjiri Shah, learned Counsel for the
Defendants at some length.
Uncontroverted facts :
16. The relationship between the parties and qua the Testator is not in
dispute. The Testator had three sons - Jagidsh, the original Plaintiff, Satish
(D2) and Jaydeep, and two daughters Neelaben - Defendant No.1 and
Varsha. Jaydeep and Varsha, the other son and daughter of the deceased,
have not challenged the Will. Though, a caveat was filed by Neelaben (D1),
yet she has not adduced evidence and contested the matter beyond filing
caveat. The contest is, thus, effectively between Jagdish, the purported
executor, and Satish (D2).
17. The following facts also appear to be rather incontestable. The Will was
registered before the Registrar of Assurances on 28 July 2003. The Testator
was about 90 years of age at the time of registration of the Will. The Testator
passed away on 16 November 2004. After the demise of the Testator,
disputes arose among the offsprings of the Testator, with the Defendant No.2
addressing a communication to Devi Meera Co-op. Hsg. Soc. Ltd., requesting
not to transfer Flat No.10 in any one's name, without the consent of all the
ts 81 of 2009.doc
heirs of the Testator. Eventually, a suit for administration of the estate of the
deceased, being Suit No.2347 of 2005, came to be filed by Defendant No.2
on 22 August 2005. Testamentary Petition was filed by the original Plaintiff on
30 January 2009.
18. In the light of the aforesaid rather uncontroverted facts, before
adverting to evaluate the evidence on the contentious issues, it may be
apposite to note the broad submissions on behalf of the parties.
Broad Submissions :
19. Mr. Sharma, learned Counsel for the Plaintiffs, submitted that the
execution and attestation of the Will as well as the testamentary capacity of
the Testator have been established beyond the pale of controversy. Firstly,
the signature of the Testator on the Will has not been disputed. A feeble
attempt has been made to urge that the signature of the Testator on the Will is
shaky. Secondly, there is not a shred of material to show that the Testator
was not in a sound state of mind. The Testator passed away after 16 months
of the execution of the Will. In the intervening period, there is material to
show that the Testator continued to attend to his business and sign the
documents. Thus, the challenge to the Will on the ground that the Testator
was in a feeble state of health and was dependent upon the Plaintiffs, is
wholly unsustainable. Thirdly, the Will is duly registered. Fourthly, both the
attesting witnesses were known to the Testators. Navin Parekh (P.W.1) even
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had family relations with Defendant No.2. Fifthly, in the totality of
circumstances, according to Mr. Sharma, the Will represents the long
standing wish of the Testator to bequeath Flat No.10, Meera to Jagdish - the
original Plaintiff. There are number of documents which evidence the said
desire of the Testator, expressed at multiple points of time.
20. Mr. Sharma would urge that the Defendant No.2, who had strained
relations with the Testator since many years prior to the execution of the Will,
is trying to take undue advantage of minor corrections in the Will and the
alleged incorrect statements of facts therein. The circumstances sought to
be pressed into service by the Defendants do not qualify as suspicious
circumstances. In any event, the deposition of Satish (D.W.2) lends
credence to the broad tenor of the Will. Lastly, none of the other heirs of the
Testator have contested the Will, and, in fact, have accepted bequests
thereunder. Therefore, the Letters of Administration deserve to be granted.
21. Ms. Manjiri Shah, learned Counsel for the Defendants, strenuously
submitted that the subject Will is a creature of Jagdish and his two close
friends Navin Parekh (PW1) and Bharat Raghani (P.W.2). The intrinsic
evidence of the purported Will, if considered in conjunction with the
incontrovertible attendant circumstances, leads to an irresistible inference that
the purported Will is brought forth to advance the interest of Jagdish. The
purported Will does not represent the true Will of the Testator. Suspicious
ts 81 of 2009.doc
circumstance, according to Ms. Shah, are abound right from the stage of the
drafting of the Will to its execution, attestation, registration and even
disclosure after the demise of the Testator.
22. Ms.Shah crystalized the circumstance which , according to her, render
it unsafe to place implicit reliance on the Will (P-20), as the last Will and
Testament of the Testator. First, the deceased did not understand English.
The Will has been drafted in English. The deceased did not know the
contents and effect of the Will. At best, the deceased had working knowledge
of the English names and numbers. Secondly, both the attesting witnesses
are childhood friends of Jagdish, the principal beneficiary, and the prominent
role played by Jagdish in getting the purported Will executed is writ large.
Thirdly, the purported Will is replete with obliteration, inter-lineation and
alterations. From the perusal of the evidence, serious doubts arise as to who
made the alterations in the Will. The names of the other sons of the Testator
namely Satish and Jaydeep as Executors were removed by applying
whitener. However, at places in the Will, there is a reference to 'Executors'
which betrays the intent of Jagdish to control all the assets and testamentary
proceedings. Fourthly, the purported Will was executed by the Testator at the
advanced age of 90 years, when the Testator was feeble, forgetful and did not
have a sound disposing state of mind. Fifthly, the purported Will is also
suspect for making reference to facts which are demonstrably incorrect and
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that indicates the Will was not the outcome of the free will of the Testator.
Sixthly, the Testator was residing with the original Plaintiff and his family
members since 15 years prior to his death and the exercise of undue
influence is evident. Seventhly, the purported Will was suppressed after the
demise of the Testator and saw the light of the day only when the Defendant
No.2 entered into correspondence with the Society. Lastly, the delay of five
years in filing the probate petition dents the case of the Plaintiffs.
23. Before appreciating the aforesaid submissions on behalf of the Counsel
for the parties, in the light of the evidence and material on record, it would be
advantageous to keep in view the principles which govern this branch of law
of testamentary succession.
24. Section 63 of the Indian Succession Act, 1925, provides the manner in
which the Will is to be executed. Clause (c) of Section 63 mandates the
attestation of the Will by two or more witnesses; each of whom must have
seen the Testator sign or received from the Testator a personal
acknowledgment of the latter's signature on the Will; each of the two
witnesses must himself sign the Will in the presence of the Testator. But it is
not peremptory that, more than one witness should be present and attest the
Will at the same time. Section 63 of the Act, 1925 is required to be read with
Section 68 of the Indian Evidence Act, which specifies the requirements for
adducing evidence in proof of execution of a document which is required by
ts 81 of 2009.doc
law to be attested. Section 68 of the Evidence Act, in terms provides that if a
document is required to be attested by law, it cannot be used as evidence
unless one attesting witness has been called for proving the execution of the
document if the attesting witness is alive.
25. Though the Will has to be proved like any other document, which is
compulsorily required to be attested, yet the solemnity attached to the Will
necessitates that the conscience of the Court that the writing propounded by
the propounder is the last Will and Testament and it has been legally and
validly executed and attested, must be satisfied. In the case of Ved Mitra
Verma V/s. Dharam Deo Verma1, the Supreme Court has laid emphasis on
the element of satisfaction of the conscience of the Court.
26. By a catena of decisions the nature and standard of evidence required
to prove the Will has been delineated. In the case of Jaswant kaur V/s. Amrit
Kaur and Ors.2, a three Judge Bench of the Supreme Court has crystalized
the propositions which govern the proof of Will, as under :
"10. There is a long line of decisions bearing on the nature and
standard of evidence required to prove a will. Those decisions
have been reviewed in an elaborate judgment of this Court in R.
Venkatachala Iyengar v.B.N. Thirnmajamma & Others3 The
Court, speaking through Gajendragadkar J., laid down in that
case the following positions :--
1. Stated generally, a will has to be proved like any other
1 (2014) 15 SCC 578
2 (1977) 1 SCC 369
3 AIR 1959 SC 443
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document, the test to be applied being the usual test of the
satisfaction of the prudent mind in such matters. As in the ease of
proof of other documents, so in the case of proof of wills, one
cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to
be attested, it cannot be used as evidence until, as required by
Section 63 of the Evidence Act, one attesting witness at least has
.been called for the purpose of proving its execution, if there be
an attesting witness alive and subject to the process of the court
and capable of giving evidence.
3. Unlike other documents, the will speaks from the
death o[ the testator and therefore the maker of the will is never
available for deposing as to the circumstances in which the will
came to be executed. This aspect introduces an element of
solemnity in the decision of the question whether the document
propounded is proved to be the last will and testament of the
testator. Normally, the onus which lies on the propounder can be
taken to be discharged on proof of the essential facts which go
into the making of the will.
4. Cases in which the execution of the will is
surround- ed by suspicious circumstances stand on a different
footing. A shaky signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a leading
part in the making of the will under which he receives a
substantial benefit and such other circumstances raise suspicion
about the execution of the will. That suspicion cannot be
removed by the mere assertion of the propounder that the will
bears the signature of the testator or that the testator was in a
sound and disposing state of mind and memory at the time when
the will was made, or that those like the wife and children of the
testator who would normally receive their due share in his estate
were disinherited because the testator might have had his own
reasons for excluding them. The presence of suspicious
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circumstances makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon the execution of
the will excite the suspicion of the court, the propounder must
remove all legitimate suspicions before the document can be
accepted as the last will of the testator.
5. It is in connection with wills, the execution of which
is surrounded by suspicious circumstance that the test of
satisfaction of the judicial conscience has been evolved. That test
emphasises that in determining the question as to whether an
instrument produced before the court is the last will of the
testator, the court is called upon to decide a solemn question and
by reason of suspicious circumstances the court has to be
satisfied fully that the will has been validly executed by the
testator.
6. If a caveator alleges fraud, undue influence, coercion etc.
in regard to the execution of the will, such pleas have to be
proved by him, but even in the absence of such pleas, the very
circumstances surrounding the execution' of the will may raise a
doubt as to whether the testa- tor was acting of his own free will.
And then it is a part of the initial onus of the propounder to
remove all reasonable doubts in the matter."
27. In the case of Sridevi and Ors. V/s. Jayaraja Shetty and Ors. 4
(supra), the onus on the propounder was concisely encapsulated as under :
"14. The propounder of the Will has to show that the Will was
signed by the testator; that he was at the relevant time in sound
disposing state of mind; that he understood the nature and effect of
dispositions and had put his signatures to the testament of his own
free will and that he had signed it in the presence of the two
witnesses who attested in his presence and in the presence of each
other. Once these elements are established, the onus which rests on
4 (2005) 2 SCC 784
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the propounder is discharged."
28. It would be contextually relevant to note that, in the case of Daulat Ram
and Ors. V/s. Sodha and Ors.5, it was enunciated that the propounder has to
show that the Will was signed by the testator and that he had put his
signatures to the testament of his own free will; that he was at the relevant
time in a sound disposing state of mind and understood the nature and effect
of the dispositions and that the testator had signed it in the presence of two
witnesses who attested it in his presence and in the presence of each other.
Once these elements are established, the onus which rests on the
propounder is discharged. But where there are suspicious circumstances, the
onus is on the propounder to remove the suspicion by leading appropriate
evidence. The burden to prove that the will was forged or that it was obtained
under undue influence or coercion or by playing a fraud is on the person who
alleges it to be so.
29. On the aforesaid touchstone, reverting to the facts of the case, the
issue Nos.1 to 4 are required to be determined by a common reasoning, as
evidence overlaps and it may not be possible to determine these issues in a
watertight compartment.
ISSUE NOS.1 TO 4 :
30. To start with the evidence of Bharat Raghani (P.W.2), who claimed to
5 (2005) 1 SCC 40
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have drafted the Will and also attested the same. Bharat Raghani (PW. 2)is a
practicing Advocate, Solicitor and a partner of M/s. Haridas and Co. He had
known the Testator. He and Jagdish were the classmate and childhood
friends. In the year 1997, the Testator had consulted him and had got
agreement prepared in respect of the partnership firm M/s.Chhokeson
Printing Works, of the Testator. Bharat Raghani (P.W.2) claims, in the month
of June 2003, the Testator contacted him and expressed his desire to make a
Will. The Testator met him in his office. The Testator gave instructions to
draft a Will in English. On the second visit, the Testator approved the draft of
the Will and called him at the Testator's residence to execute the Will. Mr.
Navin Parekh (P.W.1) was stated to be the second witness.
31. On 5 July 2003, Mr. Bharat Raghani (P.W.2) visited the house of the
Testator. In the presence of Navin Parekh (P.W.1), Bharat Raghani (P.W. 2)
read over and explained the contents of the Will to the Testator. The Testator
expressed his desire to appoint only Jagdish as the Sole Executor instead of
all the three sons, as instructed earlier, and rectify his age and the year of
retirement from M/s. Chhokeson Printing Works, and, also the month and year
mentioned in the testimonial clause and the docket to 'July 2003'. The
Testator himself applied white ink on the respective portions, and, thereafter,
as instructed by the Testator, Navin Parekh mentioned the year and did
overwrite the whiteink. Thereafter, the Testator again read the entire Will and
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subscribed his signature on the Testamentary instrument at the foot as well as
against the corrections. And at the request of the Testator, Bharat Raghani
(P.W.20 and Navin Parekh (P.W.1) put the signatures on the Will in the
presence of the Testator and in the presence of each other.
32. Mr. Bharat Raghani identified the signature of the Testator, his signature
and that of Navin Parekh (P.W.1). The Testator, according to Bharat Raghani
(P.W.2) was of sound and disposing state of mind, memory and understanding
and made and published the Will ( P-20) of his free will and pleasure. On the
instructions of the Testator, he arranged for the registration of the Will and
accordingly, on 28 July 2003, the Will was duly registered with the Office of
the Registrar of Assurances.
33. The testimony of Navin Parekh (P.W.1), the other attesting witness, by
and large, proceeds on an identical lines.
34. The first question that comes to the fore is that of signature of the
Testator on the Will. Both Navin Parekh (P.W.1) and Bharat Raghani (P.W.2)
have consistently deposed that the Testator had put signature on the Will in
their presence. The Testator had also initialed / put signatures against the
corrections. On the aspect of the factum of signature of the Testator on the
will, in the affidavit in support of the Caveat, Defendant No.2 has contended
that the Testator had put his signature not fully knowing what it contained. In
addition, a ground has been taken in the affidavit in support of the Caveat that
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the signature appearing on the Will is shaky. There is, in fact, no categorical
contention that the signature appearing on the Will is not that of the Testator.
This factor assumes significance as Satish - Defendant No.2 conceded in the
cross-examination that the Testator used to sign in English and the Testator
had signed some papers in his presence. Yet, the signature of the Testator on
the Will was not disputed. Even when confronted with the signature of the
Testator on the Will (P-20), Satish (D2) did not state that the signature was
not that of the Testator.
35. Apart from the pleadings and evidence, there are voluminous
documents on record which bear the signatures of the Testator. The
signatures of the Testator on those documents appear to be similar to the
signature of the Testator on the Will. I am, therefore, impelled to hold that the
factum of the signature of the Testator on the Will has been proved.
36. Execution and attestation of the Will (P-20) :
37. On the aspect of the factum of execution by the testator and attestation
by the Navin Parekh (PW1) and Bharat Raghani (PW2), as such, nothing
material could be extracted during the course of the cross-examination of
Navin Parekh (PW1) and Bharat Raghani (PW2) so as to discard their
testimony. Indeed, Navin Parekh (PW1) and Bharat Raghani (PW2)
conceded that they were the childhood friends of Jagdish, the deceased
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plaintiff. However, that cannot be the sole ground to disbelieve their version.
38. The circumstances which attended the execution of the Will, however,
deserve consideration. The testimony of Navin Parekh (PW1) and Bharat
Raghani (PW2) indicates that they were in the house of the Testator for about
three hours for the purpose of the execution and attestation of the Will (P-20).
Initially it was conceded that all the four family members including Jagdish,
the propounder, were present in the house. Later on, an endeavour was made
to show that Jagdish was not present and by the time Jagdish returned home,
the Will was executed. This factor of making an effort to keep Jagdish away,
by itself, may not be of significance. However, the facts that the two attesting
witnesses are the childhood friends of Jagdish, the principal beneficiary and
an effort was made to feign ignorance of execution of the Will, deserve to be
taken into account in the broad scheme of the things.
39. On the aspect of the sound and disposing state of mind of the Testator,
apart from the fact that the Testator was 90 years of age, nothing could be
brought on record to show that the Testator was afflicted by illness or
otherwise so as to take a rational decision. The challenge to the testamentary
capacity of the Testator did not travel beyond the contentions in the affidavit in
support of the Caveat and affidavit in lieu of examination-in-chief of Satish
(D2) that the Testator had become feeble, debilitated and of forgetful nature.
No material could be placed on record to show that the Testator was suffering
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from a particular ailment, which affected his faculties. Moreover, the Testator
passed away after 16 months of the purported execution of the Will. The
plaintiffs, thus, succeeded in establishing that the Testator was in a sound and
disposing state of mind.
40. On the aspect of the procurement of the Will (P-20) by the plaintiffs by
exercising undue influence, a fact which deserves to be noted is that the
Testator had been residing with Jagdish and his family members since 15
years prior to his demise. The relations between the Testator and Jagdish, on
the one part, and Satish (D2), on the other part, appeared to be strained on
account of the management of the business of the family firm. In this
backdrop, it was incumbent upon the the defendants to prove the
circumstances in which the plaintiffs exercised undue influence. Apart from
the allegations regarding the exercise of undue influence on the premise that
Jagdish and his family members were staying with the Testator, there is no
material to draw an inference that the plaintiffs exercised undue influence.
41. This propels me to the consideration of the suspicious circumstances. It
is well recognized that suspicion cannot be removed by mere proof sound and
disposing state of mind of the Testator and his signature coupled with the
proof of attestation. If there are suspicious circumstances, the onus rests on
the propounder to offer cogent and convincing explanation of the suspicious
circumstances surrounding the Will.
ts 81 of 2009.doc
42. In the case of Shivakumar and Ors. V/s. Sharanabasappa and
Ors.6, the Supreme Court after traversing through the relevant decisions
summerised the principles. The principles enunciated in paragraph Nos.12.5
to 12.9 are instructive as regards the onus of proof on the propounder to
dispel the suspicious circumstances, when a circumstance can be said to be
suspicious and the illustrative cases which may stoke such suspicion and the
satisfaction of judicial conscience of the Court. They read as under :
"12.5 If a person challenging the Will alleges fabrication or
alleges fraud, undue influence, coercion etc. in regard to the
execution of the Will, such pleas have to be proved by him, but
even in the absence of such pleas, the very circumstances
surrounding the execution of the Will may give rise to the doubt or
as to whether the Will had indeed been executed by the Testator
and/or as to whether the Testator was acting of his own free will. In
such eventuality, it is again a part of the initial onus of the
propounder to remove all reasonable doubts in the matter.
12.6 A circumstance is "suspicious" when it is not normal or is
'not normally expected in a normal situation or is not expected of a
normal person'. As put by this Court, the suspicious features must
be 'real, germane and valid' and not merely the 'fantasy of the
doubting mind.'
12.7 As to whether any particular feature or a set of features
qualify as "suspicious" would depend on the facts and
circumstances of each case. A shaky or doubtful signature; a
feeble or uncertain mind of the Testator; an unfair disposition of
property; an unjust exclusion of the legal heirs and particularly the
dependants; an active or leading part in making of the Will by the
beneficiary thereunder etc. are some of the circumstances which
6 (2021) 11 SCC 277
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may give rise to suspicion. The circumstances above-noted are
only illustrative and by no means exhaustive because there could
be any circumstance or set of circumstances which may give rise
to legitimate suspicion about the execution of the Will. On the other
hand, any of the circumstance qualifying as being suspicious could
be legitimately explained by the propounder. However, such
suspicion or suspicions cannot be removed by mere proof of sound
and disposing state of mind of the Testator and his signature
coupled with the proof of attestation.
12.8 The test of satisfaction of the judicial conscience comes into
operation when a document propounded as the Will of the Testator
is surrounded by suspicious circumstance/s. While applying such
test, the Court would address itself to the solemn questions as to
whether the Testator had signed the Will while being aware of its
contents and after understanding the nature and effect of the
dispositions in the Will?
12.9 In the ultimate analysis, where the execution of a Will is
shrouded in suspicion, it is a matter essentially of the judicial
conscience of the Court and the party which sets up the Will has to
offer cogent and convincing explanation of the suspicious
circumstances surrounding the Will." (emphasis supplied)
43. In the light of the aforesaid exposition of law, I would like to deal with
the broad suspicious circumstances pressed into service on behalf of the
Defendants.
Whether the Testator knew and understood English :
44. Ms. Shah, learned Counsel for the Defendants urged with tenacity that
the evidence on record indicates that the Testator was proficient in Gujarati
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and had a working knowledge of names and numbers in English. The Plaintiff
conceded in the cross-examination that the Testator had studied in Gujarati
medium upto 1st and 2nd standard only. Bharat Raghani (P.W.2) deposed that
the Testator gave instructions to draft the Will to him in Gujrati. Bharat
Raghani (P.W.2) affirmed that he had read over and explained the contents of
the Will to the Testator. Even, during the course of cross-examination, Bharat
Raghani (P.W.2) claimed that the Will was read out and explained to the
Testator in Gujarati.
45. Ms. Shah would urge that if the Testator was well-versed in English,
there was no reason for the Testator to give instructions to draft the will in
Gujarati. Secondly, Bharat Raghani (P.W.2) would not have been required to
read over and explain the contents of the Will to the Testator in Gujarati,
especially when it is asserted that the Testator had read the draft of the Will
and also engrossed Will (P-20), scribed in English, before its execution. The
assertion of Bharat Raghani (P.W.2) that he had read over and explained the
contents of the Will to the Testator, according to Ms. Shah, leads to an
inevitable conclusion that the Testator did not know English language.
46. In opposition to this, Mr. Sharma, learned Counsel for the Plaintiffs
strenuously submitted that the fact that the Testator was not formally educated
in English did not mean that the Testator did not know or understand English.
The Testator had been carrying on the business of printing press. In the
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process, the Testator had learnt English and there is voluminous material on
record to show that the Testator addressed communications in English,
prepared invoices and bills in English.
47. Reliance was placed on the copies of invoices (Exhibit P-11 - pages
105 to 162), record slip of cheques (Exhibit P-12 - pages 163 to 172), carbon
copies of the cheques with particulars (pages 173 to 223), Sales Registers
( Exhibit P-13 - pages 224 to 262) and Purchase Register (Exhibit P-14 -
pages 263 to 269). These documents show that the Testator who was
carrying on the business of M/s. Chhokeson Printing Works, dealed with the
customers by preparing the invoices, bills, purchase orders etc., in English.
Few of the documents are typewritten.
48. Satish - Defendant No.2 conceded in the cross-examination that the
Testator used to maintain sales register, purchase register, cheque books of
the firm and also prepared invoices raised by the firm. The Testator was also
using a typewriter. He went on to concede that the Testator signed the
cheques on behalf of the firm as late as 29 March 2004.
49. Ms. Shah, learned Counsel for the Defendants, submitted that the
aforesaid documents indicate that the Testator was familiar with the names
and numbers in English and nothing more. Not a single complete sentence
written in English by the Testator is on record.
50. The aforesaid evidence regarding the Testator's knowledge of English
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language is of material significance. The questions as to whether the Will (P-
20) is the last Will and Testament of the Testator, whether the Testator
understood the contends of the Will (P-20), whether the Testator had fully
comprehended the nature and effect of the disposition thereunder, all turn
upon the fact whether the Testator could read, understand and comprehend
English with felicity. On one hand, the Testator undoubtedly had not had
formal education beyond second grade and that too in Gujarati. On the other
hand, there is material to show that the Testator was dealing in printing works
and used to maintain the sales and purchase register and also raise the
invoices. The Testator had maintained the counterfoils of the cheques
containing the particulars of the entities to whom the cheques were issued.
51. Apart from aforesaid material, which appears to be of a structured
nature, in the sense that, it refers to the type of the commodity purchased,
printing works completed, nature of the various items therein, there is no
material to show that the Testator had addressed any formal communication
in English. On the contrary, the communications which the Testator
addressed and banked upon by the plaintiffs, namely, the note written by the
Testator in the year 1998 (Exhibit P-8), another note (Exhibit P-9), letter
addressed by the Testator to the Secretary of Devi Meera Co-operative
Housing Society (P-15) and another purported testamentary document
(Exhibit P-19) were all written in Gujarati. Even, few of the documents, which
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form part of Exhibit P-11 to P-14 contain endorsement in Gujarati beside the
English script. For instance, the counterfoil of Cheque Nos.382524 (page 196)
and 382550 (page 222); wherein the Testator had made endorsement about
the purpose of the payment in Gujarati. On the basis of the aforesaid
material, an impression becomes sustainable that the default language of the
Testator was Gujarati.
52. It would be contextually relevant to note the manner in which Bharat
Raghani (PW2) fared in the cross-examination regarding the language in
which the Testator communicated with him. Bharat Raghani (PW2) admitted
that the Testator had not given him any instructions in writing. Though Bharat
Raghani (PW2) claimed to have noted the instructions in the instructions
book, he stated that the instruction book was not available with him. To a
pointed question, Bharat Raghani (PW2) admitted that the instructions were
not spoken by the deceased in English language. Bharat Raghani (PW2)
candidly admitted that no record relating to the instructions given by the
Testator for making latter's Will was available with his office.
53. The situation which thus emerges is that apart from the testamentary
instrument, there is no material which would indicate that the steps
preparatory to the execution of the instrument were taken by the Testator in
English language. Secondly, there is no formal correspondence addressed
by the Testator for any purpose in English language. Thus, the plaintiffs claim
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that the Testator was familiar with English language and had read himself the
contents of the Will (P-20) and understood the same, hinges upon the
aforesaid material in the form of the entries in the sales and purchase register,
copies of invoices and the counterfoils of cheques.
54. As a Testamentary Court, it has to satisfy its conscience that the
Testator fully knew and understood the contents of the Will and the nature and
effect of the disposition therein. The Will contains legal and technical terms.
In the absence of an assurance that the Testator was fully familiar with
English language, it would be hazardous to arrive at such satisfaction. In
these circumstances, this Court is of the view that the question as to whether
the Testator was fully familiar with English language and understood the legal
and technical terms in the Will is in the corridor of uncertainty.
Alternations and Erasures in the Will (P-20) :
55. A perusal of the Will (P-20) would indicate that purportedly the Testator
had initially decided to appoint all his three sons to be the Executors of his
Will. However, later on, purportedly at the time of the Execution of the Will,
the names of Satish (D2) and Jaydeep, the other two sons, were erased by
whitener and only Jagdish, the deceased plaintiff, was entrusted with
executorship. In addition, the age of the Testator was corrected by applying
whitener and subsequent writing thereon to read to 90 years; the year of
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retirement of partnership was altered purportedly from 1996 to 1997 and the
date of the execution of the Will was inserted i.e. "5th" and the month and year
of the execution was rectified to "July, 2003" again by applying whitener, and
writing thereon. Likewise, on the docket of the Will the date "5 th" was inserted
and the original month and year of the execution was erased by applying
whitener, and the month and year "July, 2023" was inserted on the top of the
whitened portion.
56. The controversy principally revolved around the person, who erased the
original contents by applying whitener and who wrote the contents to rectify
the purported errors. Mr. Sharma would urge that the submission that on
account of the alteration the execution and attestation of the Will is
surrounded by suspicious circumstances is completely misplaced. Navin
Parekh (PW1) and Bharat Raghani (PW2) were well-known to the Testator
and his family members. There is nothing to doubt the credibility of these
witnesses. As regards the execution and attestation of the Will, what has to
be seen is whether the Testator was in a sound and disposing state of mind.
Since those facts stand proved beyond cavil, the alleged alterations in the Will
(P-20), which do not affect the disposition thereunder, cannot be a ground to
jettison away the wish of the Testator.
57. At any rate, Mr. Sharma would urge, each of the corrections and
alterations have been countersigned/initialled by the Testator. It could not be
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shown that the signatures/initials in the margins are not that of the Testator.
Moreover, the Will has subsequently been registered on 28th July, 2003 with
the said corrections and alterations. Therefore, the defendants cannot draw
any mileage from the said corrections and alterations.
58. It is imperative to note that initially both Navin Parekh (PW1) and
Bharat Raghani (PW2) affirmed in their examination-in-chief that the Testator
himself had applied whitener on the Will (P-20) and, thereafter, as instructed
by the Testator, Navin Parekh (PW1) had written contents over the whitened
portion. However, during the course of cross-examination Navin Parekh
(PW1) conceded that the Testator had not applied any whitener on the pages
3 and 4 of the Will (P-20) (question No.241). Bharat Raghani (PW2), on his
part, stated in the cross-examination that the Testator directed Navin Parekh
(PW1) to apply the whitener because of his old age the Testator would not
have properly put the whitener. On the aspect of the overwriting on the white
ink, Navin Parekh (PW1) had made all the corrections in the Will (P-20).
59. It would be contextually relevant to note that Bharat Raghani (PW2)
was confronted with a question as to whether he did not doubt the sound and
disposing state of mind of the Testator, when the Testator did not carry out the
corrections and changes in the Will (P-20) in his own handwriting.
Thereupon, Bharat Raghani (PW2) answered as indicated above that the
deceased instructed Navin Parekh (PW1) to apply the whitener (Q.No.200).
ts 81 of 2009.doc
In response to question No.267, Bharat Raghani (PW2) answered that as he
recollected the Testator or Navin Parekh (PW1) applied whitener, since it was
a 13 year old matter.
60. Mr. Sharma would urge that the aforesaid answer cannot be read torn
out of context. The fact that Bharat Raghani (PW2) was called upon to
dispose after 13 years of the execution of the testamentary instrument must
be given due weight.
61. The aforesaid evidence, as is evident, is equivocal. There is apparent
inconsistency in the evidence of Navin Parekh (PW1) and Bharat Raghani
(PW2) as regards the person, who actually applied the whitener and,
thereafter, wrote to rectify the purported mistakes.
62. The submission of Mr. Sharma that the aforesaid alterations did not
affect the ultimate disposition, though attractive at the first blush, yet, does not
carry conviction. The wish of the Testator as to the person, who should
execute the Will is of equal importance. As is evident, initially all the three
sons were entrusted with the Executorship. By the alteration, purportedly, at
the time of the execution of the Will (P-20), only Jagdish, who is principal
beneficiary under the Will (P-20), was made the sole Executor. It is also
necessary to note that, under the Will (P-20) the executor was given complete
and sole discretion in the mater of distribution of the jewelleries left behind by
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the Testator among the three daughters-in-law of the Testator. Therefore, it
cannot be urged that the alteration in the Will did not pertain to material part of
the testamentary disposition.
63. Therefore, it was necessary for the plaintiff to dispel the suspicion
regarding the mode and manner of the alterations in the Will (P-20). The
depositions of Navin Parekh (PW1) and Bharat Raghani (PW2) confound the
confusion as regards the mode and manner of the alteration and a cloud of
doubt is created as to whether the alterations were made in the Will especially
as regards the Executorship in accordance with the wishes of the Testator.
The claim that all the corrections were carried out by Navin Parekh (PW1)
also puts the Court on guard.
Incorrect statements in the Will (P-20) :
64. Ms. Shah, the learned Counsel for the defendants, forcefully submitted
that the Will contains incorrect recitals which were driven by a desire to show
that the Testator has distributed his assets equitably. First, a patently incorrect
statement was made that the Testator retired from the M/s. Chhokeson
Printing Works, the partnership firm, and only Satish (D2) continued to carry
on the said business from Room No.30 and Jaydeep was carrying on the
business in Room No.28. Second, an impression was sought to be created
that these properties i.e. Room Nos.30 and 28 were the properties of the
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Testator despite the fact that those were tenanted premises. Third, in order to
show that there was equal distribution of the assets, an incorrect statement
was incorporated that the Testator had provided to his two sons Satish and
Jaydeep, the residential flats in the Andheri and the business premises i.e.
Room Nos.28 and 30. And, therefore, Flat No.10 Meera, was bequeathed to
Jagdish absolutely and unconditionally.
65. Mr. Sharma Joined the issue by canvassing a submission that the
alleged incorrect statement in the Will cannot be a subject matter of enquiry
for the purpose of Section 63 of the Indian Succession Act, 1925. The events
as regards the drawing of deed of partition, as reflected in paragraph 4 of the
Will (P-20) are corroborated by defendant No.2's admission of non co-
operation leading to strained relations. It was further submitted that the cross-
examination of Satish (DW2) makes it abundantly clear that his wife Neela
had no independent income and she could not have acquired the flat but for
the financial support provided by the Testator. Neela did not enter the witness
box to controvert the claim of the plaintiffs that the said flat was provided by
the Testator. Therefore, none of the aforesaid contentions detract from the
legality and validity of the Will.
66. The aforesaid submissions deserve to be appreciated in juxtaposition
with the assertions of the witnesses as regards the correction in the Will (P-
20). It was the specific stand of the witnesses that the Testator desired to
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correct the date of his retirement from the partnership firm. This implies that
there was a reflection over the factum of retirement from the partnership and
thus the year of retirement was sought to be corrected. Thus, it cannot be
urged that the said statement found place in the Will (P-20), inadvertently.
67. The veracity of the said statement needs to be tested, in the backdrop
of the stated case of the plaintiffs that the Testator continued to carry on the
business of the firm till his demise. Conversely, there is material to show that
only draft deeds of retirement were prepared in the year 1997 and the testator
continued to be a partner of the partnership firm M/s. Chhokeson Printing
Works, as is evident, from the communication to the Bank (Exh. D-4 and D-5)
and the extract of the Firm Registration Certificate (Exh. D-6) as of 16 th
February, 2005. In the face of the aforesaid material, and a bold and positive
case of the plaintiffs that the Testator did carry on the business of the firm till
his demise, (also to show the sound and disposing state of mind of the
Testator), the recital that the Testator had retired from the firm in 1997 is
plainly incorrect.
68. Mr. Sharma endeavoured to salvage the position by inviting the
attention of the Court to the manner in which Satish (D2) fared in the cross-
examination especially as regards the strained relations between Satish (D2)
and the Testator over the matter of reconstitution of the firm. Satish (D2)
claimed that he regularly attended office of the said forum till the year 1998-
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1999.
69. I am afraid, the aforesaid line of cross-examination of Satish (D2)
advances the cause of the plaintiffs. The material on record indicates that the
situation was converse. The Testator continued to attend the business of the
firm in the capacity of its partner and Satish (D2) was not regularly attending
the business of the firm, nay, kept out or stayed away from the business of the
firm.
70. Whether the aforesaid recital in the Will that the Testator and Jagdish
had retired from the firm in 1997 is immaterial or inconsequential? If the tenor
of the Will (P-20) is considered, it become evident that the purported allotment
of the business of the firm and the premises i.e. Room Nos.29 and 30 was
premised as a cause for the allotment of Flat No.10 Meera to Jagdish, the
deceased plaintiff. It would be contextually relevant to note that Bharat
Raghani (PW2) admitted in the cross-examination in no uncertain terms that
the Testator had not shown him any document in connection with the
preparation of the Will and the draft of the Will was prepared on the basis of
verbal information. And that Room Nos.28 and 30 were stated by the Testator
to be tenanted premises. Upon being confronted with a specific question as to
whether he was aware that the tenanted premises cannot be bequeathed by
Will Mr. Bharat Raghani (PW2) replied that he was aware. However, the
Testator had then stated that he would take care of the aspect of tenancy
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with the landlords.
71. It would be contextually relevant to note, what explanation the
propounder had to offer regarding the retirement of the Testator from the firm.
Jagdish affirmed that the Deed of Retirement - cum - Partnership and Deed
of Partnership were not executed due to adamant attitude of Satish (D2) and
the Testator alone carried on the business till his death. The Propounder,
therefore, cannot be said to have offered any explanation to dispel the
suspicion created on account of the aforesaid material incorrect statement in
the Will (P-20).
72. Another recital in the Will (P-20) that the Testator had provided
residential flats in Andheri to his sons Satish (D2) and Jagdish also did not
appear to be absolutely correct. The Agreement for Sale in respect of a flat
situated at Darshan Smriti indicates that it was acquired by Smt. Neela Shah,
wife of Satish (D2). Copies of passbook of Dena Bank were pressed into
service on behalf of the defendants to show that the said flat was purchased
by utilizing the money standing to the credit of the said account of Neela. In
the cross-examination of Satish (D2), a concerted effort was made to show
that the finance to acquire the said flat was provided by the Testator.
73. It was elicited that Neela was not engaged in any business and she had
not had any specific source of income. To a pointed question, as to the source
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of the deposit of Rs.11,000/- in the aforesaid account of Neela, with Dena
Bank, Satish (D2) replied that, that was contribution from 'our parental help'
(question No.78). When contested, the learned Commissioner recorded that
the witness answered as, "our parental help" and not "her parental help".
Satish (D2) added that the parental help was in the nature of the payments by
his mother-in-law and brother-in-law. In substance, it was the stand of Satish
(D2) that the funds had come from his mother-in-law and brother-in-law and
the Testator had not contributed to the same.
74. It has to be seen what explanation the Propounder had to offer.
Jagdish (PW3) asserted that in the year 1974, Satish (D2) shifted to
residential premises in Darshan Smriti, which was provided by the deceased.
In the cross-examination, however, Jagdish (PW3) stated that defendant No.2
had purchased the Darshan Smriti flat and, thereafter, the Testator had
provided funds to defendant No.2. When confronted with a pointed question
that the flat in the Darshan Smriti was purchased in the name of Neela from
her own funds, Jagdish (PW3) answered that he believed that the funds were
provided by Neela's father. He went to correct himself to state that Neela's
father had initially provided funds and thereafter the Testator had provided the
funds. The aforesaid evidence leads to an inference that the recital in the Will
(P-20) that the Testator had provided a residential flat to Satish (D2) could not
be substantiated. Again, the propounder failed to explain this circumstance
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formed by the incorrect statement in the Will (P-20).
75. It is true, in the instant case, the disputed question as to the acquisition
of the said property need not be delved into. However, when such recitals are
incorporated to justify the bequest in favour of the legatee, incorrectness
thereof assumes the character of a suspicious circumstance.
76. Mr. Sharma was justified in canvassing a submission that mere unequal
distribution or the fact that one of the heirs was excluded from the bequest
cannot be a ground to doubt to legality and validity of the Will (P-20). Reliance
was placed on the decision in the case of Ramabai Padmakar Patil vs.
Rukminibai Vishnu Vekhande and others7 wherein it was enunciated that a
Will is executed to alter the mode of succession and by the very nature of
things it is bound to result in either reducing or depriving the share of a natural
heir. If a person intends his property to pass to his natural heirs, there is no
necessity at all of executing a Will. It is true that a propounder of the Will has
to remove all suspicious circumstances. Suspicion means doubt, conjecture
or mistrust. But the fact that natural heirs have either been excluded or a
lesser share has been given to them, by itself without anything more, cannot
be held to be a suspicious circumstance, especially in a case where the
bequest has been made in favour of an offspring.
77. There can be no quarrel with the aforesaid proposition. The incorrect
7 (2003) 8 SCC 537.
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statements in the Will are being taken into account not from the point of view
of questioning the desire of the Testator in bequeathing particular property to
one of the heirs but to test whether that constitutes a suspicious
circumstances reflecting upon the genuineness of the Will (P-20).
Registration :
78. Mr. Sharma urged that all these objections pale in significance as the
Will (P-20) was duly registered under three weeks of its execution. The
registration of the Will (P-20) substantially blunts the challenge to the
execution and the attestation of the Will (P-20). A very heavy onus lies on the
objector to establish that the Will is not the outcome of the free will of the
Testator. A strong reliance was placed by Mr. Sharma on the decision of the
Supreme Court in the case of Pentakota Satyanarayana and others vs.
Pentakota Seetharatnam and others8. The observations in paragraph 24 are
extracted below:
"24. ........ It is true that registration of the Will does not dispense
with the need of proving, execution and attestation of a document
which is required by law to be proved in the manner as provided in
Section 68 of the Evidence Act . The Registrar has made the following
particulars on Ex.B-9 which was admitted to registration, namely, the
date, hour and place of presentation of document for registration, the
signature of the person admitting the execution of the Will and the
signature of the identifying witnesses. The document also contains the
signatures of the attesting witnesses and the scribe. Such particulars
8 (2005) 8 Supreme Court Cases 67.
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are required to be endorsed by the Registrar along with his signature
and date of document. A presumption by a reference to Section 114 of
the Evidence Act shall arise to the effect that particulars contained in
the endorsement of registration were regularly and duly performed and
are correctly recorded. In our opinion, the burden of proof to prove the
Will has been duly and satisfactorily discharged by the appellants. The
onus is discharged by the propounder adducing prima facie evidence
proving the competence of the testator and execution of the Will in the
manner contemplated by law. In such circumstances, the onus shift to
the contestant opposing the Will to bring material on record meeting
such prima facie case in which event the onus shift back on the
propounder to satisfy the court affirmatively that the testator did know
well the contents of the Will and in sound disposing capacity executed
the same." (emphasis supplied)
79. Per contra, Ms. Shah urged that, in the facts of the case, the
registration of the Will (P-20) does not provide the assurance about the
genuineness of the Will (P-20). Nor does it dispel the suspicious
circumstances. Reliance was placed on the decision of the Supreme Court in
the case of Rani Purnima Debi and another vs. Kumar Khagendra Narayan
Deb and another9, wherein the Supreme Court enunciated the law as under:
"23. There is no doubt that if a will has been registered, that is a
circumstance which may, having regard to the circumstances, prove its
genuineness. But the mere fact that a will is registered will not by itself
be sufficient to dispel all suspicion regarding it where suspicion exists,
without submitting the evidence of registration to a close examination. If
the evidence as to registration on a close examination reveals that the
9 AIR 1962 Supreme Court 567.
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registration was made in such a manner that it was brought home to
the testator that the document of which he was admitting execution was
a will disposing of his property and thereafter he admitted its execution
and signed it in token thereof, the registration will dispel the doubt as to
the genuineness of the will. But if the evidence as to registration shows
that it was done in a perfunctory manner, that the officer registering the
will did not read it over to the testator or did not bring home to him that
he was admitting the execution of a will or did not satisfy himself in
some other way (as, for example, by seeing the testator reading the
will) that the testator knew that it was a will the execution of which he
was admitting, the fact that the will Was registered would not be of
much value. It is not unknown that registration may take place without
the executant really knowing what he was registering. Law reports are
full of cases in which registered wills have not been acted upon: (see,
for example, Vellasaway Sarvai v. L. Sivaraman Servai, (ILR 8 Rng
179: (AIR 1930 PC 24), Surendra Nath v. Jnanendra Nath (AIR 1932
Cal 574) and Girji Datt Singh v. Gangotri Datt Singh (S) (AIR 1955 SC
346). Therefore, the mere fact of registration may not by itself be
enough to dispel all suspicion that may attach to the execution and
attestation of a will; though the fact that there has been registration
would be an important circumstance in favour of the will being genuine
if the evidence as to registration establishes that the testator admitted
the execution of the will after knowing that it was a will the execution of
which he was admitting." (emphasis supplied)
80. Ms. Shah further submitted that the registration of the Will (P-20)
appeared to be perfunctory. The Index-II attached to the Will (P-20) would
indicate that the registration process was over under four minutes. No
evidence was led to show that the Registrar had read over the contents of the
Will (P-20) to the Testator and ascertained the correctness thereof from the
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Testator.
81. The aforesaid submission deserves consideration in the light of the fact
that there were apparent alterations in the Will (P-20). There is no material to
lend assurance to the fact that those alterations were made before the Will (P-
20) was registered. The registering authority does not seem to have made
any endorsement or encircled the alterations / erasures to show that those
corrections did exist at the time of the registration of the Will (P-20).
82. This factor is of critical salience. Under Section 20 of the Registration
Act, 1908, the Registering Officer may in his discretion refuse to accept for
registration any document in which any interlineation, blank, erasure or
alteration appears, unless the persons executing the document attest with
their signatures or initials such interlineation, blank, erasure or alteration.
Under Rule 44(1)(f) of the Maharashtra Registration Rules, 1961, the
Registrar is required to verify that any interlineations, blanks, erasures or
alterations appearing in the document are attested by the signature, or initials
of the person or persons executing the same as required by Section 20. Rule
53 provides the manner of noting interlineations, etc., and writing marginal
notes.
83. In the light of the aforesaid statutory prescriptions, the alterations and
especially the erasures of the names of the executors in the Will (P-20), stare
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in the face. There is not a shred of material to show that the Registering
Officer had verified the existence of those alterations and erasures in the Will
(P-20) at the time of the registration. The necessary corollary is a serious
doubt about the alterations and erasures in the Will (P-20) post registration.
84. A useful reference, in this context, can be made to the judgment of the
Supreme Court in the case of Leela Rajagopal and others vs. Kamala Menon
Cochran and ors.10, wherein the Supreme Court emphasised that the judicial
verdict, in the last resort, will be on the basis of a consideration of all the
unusual features and suspicious circumstances put together and not on the
impact of any single feature that may be found in a Will or a singular
circumstance that may appear from the process leading to its execution or
registration.
85. A cumulative consideration of the aforesaid factors renders it unsafe to
draw an inference that the Will (P-20) has been proved to the satisfaction of
the conscious of the Court free of the suspicious circumstances. The
execution and attestation of the Will is surrounded with suspicion right from
the pivotal aspect as to whether the deceased new the English language and
read and understood the contents of the Will (P-20) and thereby the nature
and effect of the disposition therein; two, the evidence is extremely
unsatisfactory as regards the additions and alterations in the Will; three, the
10 (2014) 15 SCC 570.
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recitals in the Will are demonstrably incorrect and, four, those incorrect
recitals betray an intent to show that there was an apparent equal distribution
of the assets and a justification for the bequest of Flat No.10 Meera to
Jagdish.
86. Mr. Sharma would urge that the wish of the Testator to bequeath Flat
No.10 Meera to Jagdish was manifested in a series of events, pre-dating
years prior to the demise of the Testator. The change in nomination with Devi
Meera Co-operative Society in the year 1997, whereunder Jagdish had been
exclusively nominated as the nominee thereto and the other documents
including the notes (Exh. P-8 and P-9) and the testamentary instrument in
Gujarati (P-19), manifest the desire of the Testator.
87. Purported testamentary instrument (P-19) dated 15th January 2003
cannot be pressed into service as the same has not been banked upon as the
Will of the Testator. Without the said testamentary instrument having been
proved in the manner warranted by Section 63 of the Succession Act and
Section 68 of the Evidence Act, the said document cannot be looked into.
88. The nomination of Jagdish alone, may have some significance.
However, the nomination by itself, it is trite, does not confer any title on
nominee. Nor can it be clothed with the status of a testamentary instrument.
The notes (P-8) and (P-9), being unsigned and undated documents, are of
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doubtful evidentiary value. I am, therefore, inclined to answer issue No.1 in
the negative, issue No.2 in the affirmative to the extent of sound and
disposing state of mind, and issue Nos.3 and 4 in the negative.
Issue No.5 :
89. The Testator passed away on 16 November 2009. The testamentary
petition came to be filed on 30 January 2009. It was thus urged on behalf of
the learned Counsel for the defendants that the petition for Probate was
barred by law of limitation. It would be contextually relevant that the ground of
non-disclosure of the Will (P-20) for a longtime after demise of the Testator
was also urged as a suspicious circumstance. It was submitted that the Will
(P-20) was disclosed only after Satish (D2) addressed a communication to
Devi Meera Co-operative Housing Society.
90. Jagdish, the deceased plaintiff, in his affidavit in lieu of examination-in-
chief deposed that since the defendant No.2 had instituted Suit No.2347 of
2005 and had taken out the Notice of Motion therein, and, resultantly, the
cause of action to file the Probate petition arose after all the efforts at
amicable resolution of the dispute failed.
91. On the aspect of the disclosure of the Will, it is necessary to note that in
response to the notice date 25 November 2004 addressed by Satish (D2) to
Devi Meera Co-operative Housing Society Ltd., on 3 December 2004, a reply
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was sent on behalf of Jagdish, the deceased plaintiff. In the said reply, in
addition to the fact that the Testator had nominated Jagdish as his nominee in
respect of Flat No.10 Meera, it was mentioned that the Testator had left
behind his last Will and Testament dated 5 July 2003 which is duly registered
and under the Will the Testator had bequeathed the said flat and related
shares to Jagdish absolutely and unconditionally.
92. Having regard to the time-lag between the date of death of the Testator
and the said communication dated 3 December 2004, it cannot be said that
there was non-disclosure of the Will (P-20) for a longtime, after the demise of
the Testator.
93. The legal position as regards the applicability of the period of limitation
for a petition for Probate or Letters of Administration is no longer res integra.
In the case of Kunvarjeet Singh Khandpur vs. Kirandeep Kaur and ors. 11, the
Supreme Court considered the question as to whether Article 137 of the
Limitation Act applies to a proceeding for grant of Probate and Letters of
Administration.
94. The Supreme Court held that the crucial expression in Article 137 is,
"right to apply". In a proceedings for Probate or Letters of Administration, the
application merely seeks recognition from the Court to perform a duty and
because of the nature of the proceedings it is a continuing right. Yet, it cannot
11 (2008) 8 Supreme Court Cases 463.
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be said that the application for grant of Probate or Letters of Administration is
not covered by Article 137 of the Limitation Act.
95. Referring to a judgment of this Court in the case of Vasudeo Daulatram
Sadarangani vs. Sajni Prem Lalwani 12, the Supreme Court held that the
enunciation by this Court that the assumption that in Article 137, the right to
apply necessarily accrued on the date of the death of the deceased is
unwarranted, was not correct. However, the proposition that an application
for grant of Probate or Letters of Administration is for the Court's permission to
perform legal duty crated by a Will or for recognition as a testamentary trustee
and his continuous right, which can be exercised any time after the death of
the deceased, as long as the right to do so survives and the object of the trust
exists or any part of the trust if created remains to be executed, was the
correct position in law.
96. Following the aforesaid pronouncement, in the case of Wilma Levert
Canuao and others vs. Allan Sebastian D'Souza and another13, a Division
Bench of this Court observed as under:
"19. This judgment of the learned Single Judge of this Court fell for
consideration before the Supreme Court in Kunvarjeet Singh
Khandpur (supra). The Supreme Court held, following the decision in
Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma,
(1976) 4 SCC 634 that Article 137 of the Limitation Act, 1963 is
12 1983 Bombay 268.
13 2013 SCC Online Bom 720.
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applicable to a petition for grant of letters of administration. The
Supreme Court, however, observed that in such proceedings the
application merely seeks recognition from the Court to perform a
duty and, because of the nature of the proceedings, it is a continuing
right. The judgment of this Court in Vasudeo Daulatram Sadarangani
(supra) was specifically adverted to in the judgment of the Supreme
Court and it has been held that while conclusion (b) above laid down
in the judgment of the Single Judge of this Court is not correct, the
principle in (c) above reflects the correct position in law.
Consequently it is a well settled principle that an application for the
grant of letters of administration or a petition for the grant of probate
seeks, in substance and in effect, the permission of the Court to
perform a legal duty created by the will or for recognition as a
testamentary trustee. This necessarily involves a continuing cause of
action and so long as the right to do so survives and the object of the
trust remains to be executed, the cause of action would not be
barred by limitation."
97. Applying the aforesaid principles, to the facts of the case at hand, it is
evident that the Will (P-20) was disclosed, no sooner defendant No.2 served
the notice on Devi Meera Co-operative Housing Society. As noted above,
Satish (D2) instituted the suit for administration. In the said suit, it was the
claim of the deceased plaintiff that an effort was made for an amicable
resolution of the dispute, and only after realizing that amicable resolution of
the dispute was not possible, the petition came to be filed.
98. If the aforesaid facts are construed on the anvil that a petitioner in the
petition for Probate or Letters of Administration, in substance, seeks the
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permission of the Court to perform a legal duty created by the Will (P-20) and
it involves a continuing cause of action, the suit cannot be said to have been
barred by limitation as that duty remained to be performed. The explanation
that the deceased plaintiff expected an amicable resolution of the dispute in
the administration suit and, therefore, the petition was not immediately filed
cannot be said to be untenable. I am, therefore, persuaded to answer issue
No.5 in the negative.
99. The conspectus of aforesaid consideration is that though there is
material to show the execution and attestation of the Will (P-20), and the
sound and disposing state of mind, yet the suspicious circumstances adverted
to above, do not satisfy the conscience of the Court that the Will (P-20) is the
last Will and Testament of the Testator and it was the outcome of the free will
of the Testator. And, therefore, despite negative findings on issue Nos.3 to 5,
the suit deserves to be dismissed.
100. Hence, the following order :
ORDER
(i) The Suit and, consequently, the Petition stand dismissed.
(ii) In the circumstances of the case, the parties shall bear their
respective costs.
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(iii) Decree be drawn up accordingly.
( N.J.JAMADAR, J. )
